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Bears, woods and silk: dual research reminds profession of stalled diversity progress

Recent efforts to improve social mobility within the legal profession are having little-to-no effect at the Bar and within the judiciary, two new studies have concluded.

Male, Oxbridge-educated barristers at City-based chambers remain more likely to take silk despite major reform to the appointments system, a new study by the London School of Economics and Political Science (LSE) revealed today (23 November).

In a similar vein, new research by law firm social mobility alliance PRIME has shown three quarters of top judges and 71% of QCs are still privately educated, meaning they are ten times more likely than the general populace to have attended an independent school.

The LSE research, conducted by assistant law professor Michael Blackwell, concluded that reforms rolled out in 2004 designed to create a process that is fair and transparent appear to have ‘failed in improving diversity’.

In the first academic study of the reformed QC appointments system, Blackwell pointed to the need for ‘serious policy debate’ about abolishing QC status, because its ‘existence does not appear to be in the interests of consumers or of justice’.

A statistical analysis of the careers of 11,453 barristers in 138 chambers between 1981 and 2011 assessed if criticisms of the earlier system were founded and to assess whether the new system was an improvement. The study showed certain attributes, such as gender, length of call and educational background, alongside chambers’ area of legal specialisation, are linked to the likelihood of a member of one of those sets being appointed as a QC.

Post-reform, women and non-Oxbridge educated barristers continue to be less likely than other barristers in the same chambers and of equivalent call to become QCs.

Pre-reform stats show an Oxbridge graduate who remained in an average set between 12 and 35 years’ post call had a 57% chance of becoming a QC if male and 44% chance if female. Post-reform statistics were 52% and 40% respectively.

Other notable factors include the likelihood of becoming a QC being highly contingent on the chambers that barristers are members of, with the post-reform period seeing small London-based chambers more likely to produce QCs.

The study showed that for an Oxbridge educated male barrister, the estimated probability of becoming a QC between 12 and 35 years’ call is 98% if they are in the set most likely to produce QCs, but only 14% if they are in the set least likely to produce QCs.

Blackwell said: ‘Because of the failure of the QC system to appoint the best advocates it does not operate as a perfect kite mark of quality for consumers. Nor does it equally distribute the awards of QC status on any equitable basis. Finally, it might be thought to inhibit judicial diversity by restricting the pool from which the senior judiciary is traditionally recruited.’

Meanwhile, the findings from PRIME and The Sutton Trust also made for bleak reading: the law predominantly comprises of privately educated lawyers, with little change since the 1980s. With only 7% of the general population attending a private school, three-quarters of top judges and 71% of QCs are still privately educated while solicitors’ stats show 32% of law firm partners attended private school, a figure which rises to 41% across all London firms.

This at-best sluggish social mobility within the profession is despite 52% of the respondents, polled by YouGov, stating that improving social mobility in the legal profession would be beneficial to their firm and 71% acknowledging the benefit to society as a whole. When asked to identify where responsibility for solving the problem lies, ‘law firms’ came out top, getting almost a third (30%) of respondents’ votes.

Allen & Overy senior partner and chairman of PRIME, David Morley, said: ‘The research shows that a large part of the responsibility for solving this issue lies with law firms, so we need to ensure they attack the problem with the energy and enthusiasm it deserves.’

For more on social inclusion, see Small gestures – can a new wave of social inclusion schemes deliver?